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Below are this week’s summaries of the civil decisions of the Court of Appeal.

Congratulations to our very own Bill Anderson for succeeding on the main issues in our client’s appeal in Nemeth v. Hatch Ltd., 2018 ONCA 7. In this Employment law decision, the Court of Appeal found that it is not necessary to include an explicit stipulation in a termination clause of an employment agreement in order to displace the common law, as long as the intention is clear from the words used. Additionally, the Court of Appeal found that silence in a termination clause concerning an employee’s entitlement to severance pay does not denote an intention to contract out of the Employment Standards Act.

In Trade Finance Solutions Inc. v. Equinox Global Limited, 2018 ONCA 12, the court enforced an arbitration clause in an insurance policy and stayed an action brought in Ontario in favour of arbitration in London, England. The “Action Against Insurer” clause stipulating the address for service of process on Lloyd’s of London in Canada was found not to constitute an alternative dispute resolution clause. It was found to effectively be an address for service clause, which would include service of a notice of arbitration to be held in London.

Other topics include a review of the “Real and Substantial Connection Test” in Sgromo v. Scott., the Family law case of Lavie v. Lavie, in which the court reviewed the law relating to the imputing of income for the purposes of calculating support, and Brown v. Canada, which was a Charter damages case for unlawful detention of an illegal immigrant for the purpose of deportation.

Finally, I would like to invite all of our readers to attend the CLE that my partner, Lea Nebel and I will be chairing featuring the top Court of Appeal decisions of the year. Justice Epstein will be making the keynote address. The CLE has been scheduled as a casual evening/dinner program at the OBA offices on Toronto Street to take place on Monday, February 26, 2018. In-person registration will be at 5:30, dinner will be served at 6, and the formal program will run from 6:30 to 8pm. For those who cannot attend in person, you can participate via live webcast. Please see the program agenda for further details and to register.

There are three decisions being featured. The first is Moore v Sweet, 2017 ONCA 182, which relates to the remedy of constructive trust. That case will be heard by the Supreme Court in the coming months. Counsel on that matter, David M. Smith and Jeremy Opolsky, have agreed to participate in our panel discussion. The second case is Presidential MSH Corporation v. Marr Foster & Co. LLP, 2017 ONCA. That case canvassed, summarized and clarified the law regarding when the “appropriate means” analysis under s. 5(1)(a)(iv) of the Limitation Act, 2002, can be applied to delay the start of the running of the basic two-year limitation period. Counsel for the parties on that matter, Allan Sternberg, Daniella Murynka and Michael Girard, will be our panelists. The law in this area is continuing to evolve. The third decision featured is Hodge v Neinstein, 2017 ONCA 494. That case has certainly received the attention of the plaintiffs’ personal injury bar and the media and has, no doubt, been a catalyst behind the Law Society’s efforts to develop a standard form contingency fee agreement and disclosure obligations aimed at providing better information to clients. Counsel for the class plaintiffs, Peter Waldmann, will be joined on our panel by Bevin Shores and Audrey P. Ramsay, who are involved with the OBA and the Law Society working groups looking at this issue.

The appellant appeals from the dismissal of his action for damages arising out of the termination of his employment without cause, following his motion for summary judgment. The appellant was employed by the defendant for just over 19 years when his employment was terminated. The defendant gave the appellant 8 weeks’ notice of termination, paid him 19.42 weeks’ salary as severance pay, and continued his benefits, including his pension benefits, during the 8-week notice period. This was consistent with the appellant’s minimum entitlements under the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”), and reflected the respondent’s interpretation of the termination clause in the appellant’s employment contract. The termination clause provided that “the notice period shall amount to one week per year of service with a minimum of four weeks or the notice required by the applicable labour legislation.”

The appellant appeals on three grounds (1) That the appellant retained his rights to common law notice because the termination clause does not contain express language excluding entitlements under the common law; (2) the termination is void under s. 5(1) of the ESA because it purports to contract out of the appellant’s statutory entitlements to severance pay by absence of reference; and (3) the motion judge erred in failing to consider the appellant’s alternative argument that he is entitled to one week’s notice for every year of employment under the termination clause, with the result that he should have received 19 weeks’ notice.

Issues:

(1) Is it necessary to include an explicit stipulation in a termination clause in order to displace the common law?

(2) Is the termination clause void because it purports to contract out of the ESA?

(3) Does the termination clause entitle the appellant to 19 weeks’ notice of termination of his employment?

Holding:

Appeal allowed, in part.

Reasoning:

(1) No. The well-established presumption is that on termination, an employee is entitled to common law notice. However, in accordance with the Supreme Court of Canada decision in Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, this presumption may be rebutted if the contract of employment “clearly specifies some other period of notice, whether expressly or impliedly”, provided that it meets the minimum entitlements prescribed under the ESA. In accordance with Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158, the intention to displace an employee’s common law notice entitlement must be clearly and unambiguously expressed in the contractual language used by the parties. The need for clarity does not mean that the parties must use a specific phrase or particular formula, or state literally that “the parties have agreed to limit an employee’s common law rights on termination”. It suffices that the parties’ intention to displace an employee’s common law notice rights can be readily gleaned from the language agreed to by the parties. Here, in accordance with Matchinger, the clause clearly “specifies some other period of notice” and, accordingly, this ground of appeal was dismissed.

(2) No. Silence of the termination clause concerning the appellant’s entitlement to severance pay does not denote an intention to contract out of the ESA.

(3) Yes. The motion judge did not consider this argument, however even if the motion judge had considered it, the Court of Appeal is of the view that the clause gives rise to two possible interpretations: one that would limit the appellant’s notice entitlement to the minimum prescribed by the ESA; the other that would not. Pursuant to the decision in Wood, when presented with a termination clause that could reasonably be interpreted in more than one way “courts should prefer the interpretation that gives the greater benefit to the employee”. The second sentence of the termination clause provides that the appellant is entitled to receive one week’s notice for every year of service. It is not limited by the subordinate clause following the preposition “with”. Rather, the words “a minimum of four weeks or the notice required by the applicable labour legislation” prescribe the minimum floor of the appellant’s notice entitlement under the agreement, in order that the notice provision of “one week per year of service” does not run afoul of the minimum requirements of the ESA. There is no language restricting the appellant’s entitlements to only the minimum notice period under the ESA. Therefore this ground of appeal was allowed and the appellant was entitled to receive 19 weeks’ notice.

[Laskin, Miller and Paciocco JJ.A.]

Counsel:

A Challis and A Fletcher, for Leonard Gregory Scott and Eureka Inventions LLC

The appellant, Peter Anthony Sgromo (“Mr. Sgromo”), brought four related actions arising out of various dealings with the respondents as a consultant. During the period of time at issue in his lawsuits – roughly 2001 to 2016 – Mr. Sgromo lived in the United States. The actions of the various respondents of which he complains all took place in the United States, almost entirely in California. Mr. Sgromo currently resides in Ontario.

The respondents brought motions to dismiss or stay the appellants’ actions, principally on the ground that an Ontario court had no jurisdiction over his claims because there is no real and substantial connection between his litigation and this province. In each action, the motion judge granted the motion and stayed the action brought by Mr. Sgromo (and, where applicable, Wide Eyes).

Issues:

(1) Did Mr. Sgromo enter into a consulting contract with Imperial Toy at the Toronto airport, thus giving Ontario jurisdiction over his claim against that company?

(2) Did Mr. Sgromo enter into a consulting contract with Bestway at the Toronto airport, thus giving Ontario jurisdiction over Mr. Sgromo’s claim in his litigation against Mr. Scott and the Bestway companies?

(3) Were some of the respondents carrying on business in Ontario, thus satisfying one of the presumptive connecting factors for jurisdiction under the principles set out by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda?

Holding: Appeal dismissed.

Reasoning:

Ontario Courts have no jurisdiction over Mr. Sgromo’s claims.

(1) and (2) No. The Court dealt with the first two issues — two work visa applications made by Imperial Toy and Bestway at the Toronto airport to Homeland Security, whose authorization Mr. Sgromo required to work in the United States as their consultant. Neither application was a contract. Any consulting arrangement or other business relationship between the parties took place in California. The two visa applications made at the Toronto airport do not establish a real and substantial connection to Ontario.

(3) No. Mr. Sgromo submits that because the products of some of the respondents were advertised, marketed, and distributed in Ontario, the respondents were in substance carrying on business here. The respondents acknowledge that under Van Breda, carrying on business in Ontario is a presumptive factor establishing a real and substantial connection to this province.

The Court noted, however, that in Van Breda, LeBel J. emphasized that even active advertising in Ontario would not be enough to establish that a defendant was carrying on business here.

The appellant, Kevin Lavie, appeals from the trial judge’s decision dealing with division of property, as well as spousal and child support following marriage breakdown. Following their separation, the parties agreed on joint custody with the children spending equal time with both parents. Tanya worked as a teacher from 1998 to 2004. She left teaching after her second child was born. The parties agreed at that point that Tanya would not return to her teaching career so she could be more available to the children. In 2006, Tanya began operating Balls of Fun (BOF), a child play center. Based on the evidence of the expert evaluator, the trial judge determined Tanya’s personal income from BOF to be $15,000 in 2009. Kevin worked as an editor for a television show, but was terminated in 2012. The trial judge determined that Kevin’s income for 2012 was $77,923.

In his judgment, the trial judge rejected Kevin’s position that he was entitled to an equalization payment of $64,915.97, and a post-separation adjustment payment of $52,669.16. Based on his assessment of the evidence, he concluded that Tanya was to make an equalization payment of $5,380.27, and that Kevin was to make a post-separation adjustment payment to Tanya of $1,440. The trial judge also ordered Kevin to pay retroactive child and spousal support of $714 and $691 per month respectively commencing November 1, 2009. With respect to Tanya, the trial judge declined to impute income equal to a teacher’s salary. Instead, based on the fact that the parties had agreed that Tanya should not return to teaching, he found that she was not intentionally underemployed. He therefore accepted the evaluator’s opinion that her estimated income at the time of separation was $15,000.

The judge ordered the set-off amount of child support and then added to this an amount of spousal support payable to Tanya to achieve equal net disposable incomes between the parties. This was reflected in the amount of support awarded. Given the uncertainty of Kevin’s employment prospects, the trial judge also provided that Kevin could seek to have the spousal support issue reconsidered in 2017 without the need to establish a material change in circumstances.

Issues:

(1) Did the trial judge give the appellant a fair hearing?

(2) Did the trial judge err in his treatment of the BOF shareholder loan?

(3) Did the trial judge err by imputing income to the appellant but not the respondent?

(4) Should the fresh evidence be considered?

Holding: Appeal allowed, in part.

Reasoning:

(1) No, there is no basis for concluding that Kevin was not afforded a fair hearing. The trial judge gave him considerable assistance as a self-represented party. At the outset of the hearing, the trial judge provided him with the Superior Court of Justice memorandum on trial procedures. He was not prevented from presenting any relevant evidence.

(2) No. The expert evidence at trial was that BOF’s value to Tanya was $55,000 in total, which included the value of the shareholder loan. The expert explained that, given the amount of bank debt and the payment obligations of BOF for rent, employees, and the like, $55,000 was all that could be salvaged by Tanya if she sought to dispose of BOF. The Court deferred to the trial judge’s acceptance of this expert evidence.

(3) Yes. The trial judge rejected Kevin’s submission that income should be imputed to Tanya. He found that because Tanya was not intentionally underemployed, there was no basis to impute income to her as Tanya and Kevin had made a joint decision that Tanya would primarily care for the children. Section 19(1)(a) of the Federal Child Support Guidelines permits the court to impute additional income where a spouse is intentionally underemployed. As per Drygala v. Pauli, (2002), 61 O.R. (3d) 711 (Ont. C.A.), in order to find intentional underemployment and to impute income to a parent, there is no need to find a specific intent to evade child support obligations. The trial judge erred by concluding that Tanya was not intentionally underemployed. The reasons for underemployment are irrelevant. If a parent is earning less than she or he could be, he or she is intentionally underemployed. From the time she chose to start BOF and to earn $15,000 per year rather than the over $70,000 per year Tanya would have earned returning to teaching, she was intentionally underemployed.

Section 19(1)(a) also provides that the court must consider if such intentional under-employment is “required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse”. The trial judge found that the decision for Tanya to start BOF did not rise to the level of a “requirement” for the purpose of s. 19(1)(a). The trial judge ought to have concluded that s. 19(1)(a) was engaged in this case. Where s. 19(1)(a) is engaged, the court retains discretion to decide whether, and if so, how much, income to impute to the under-employed spouse. When imputing income based on intentional under- employment or unemployment, a court must consider what is reasonable in the circumstances. The factors to be considered include age, education, experience, skills and health of the parent. The judge’s finding that Tanya’s decision not to return to her teaching position and to work on building up BOF was made jointly by the parties. That alone, however, did not justify imputing $70,000 in additional income to Kevin and no additional income to Tanya.

At the time of the trial, the parties were sharing parenting responsibilities equally such that the children could only directly benefit from Tanya’s extra time at home while staying with her. For the other half of the time, they would benefit equally from Kevin’s ability to work fewer hours. Kevin may also have chosen to support building a business that he could ultimately benefit from, but after separation, he could no longer benefit from the business’ growth. Taking all of this into account, it was appropriate to either impute additional income to both parties or to neither of them.

The Court held that while Kevin was still employed, no additional income should be imputed to Tanya. Once Kevin became unintentionally unemployed, it was not appropriate to impute to him his former full salary while at the same time imputing no additional income to Tanya. After this period, the court imputed income of $70,000 to both parties such that they are deemed to be earning the same amount, so no spousal or child support was owed.

The court varied the original judgment to provide that as of January 1, 2013, there was no spousal or child support owing by either party. The court also modified the provision that Kevin can bring a review of spousal support after October 5, 2017, to provide that either party may bring a review of spousal or child support based on any relevant change in circumstances since trial. The parties need not meet the threshold of a material change in circumstances. A qualifying change would include that either party now has a stronger claim for child or spousal support based on bona fide but unsuccessful efforts to secure employment income beyond that earned at trial.

Kevin raised a number of additional grounds of appeal. These were based on the trial judge’s factual findings, and were entitled to deference.

(4) No. The fresh evidence would not have affected the outcome of the trial. To the extent that it involves changes in circumstances since the trial, the fresh evidence is best considered on a future motion to vary the support obligations.

This appeal concerns a dispute between a utility and a rural municipality over the sharing of the utility’s costs to relocate parts of a gas pipeline as a result of the rural municipality’s construction of certain drainage works. The disposition of the appeal requires the court to consider the terms of a franchise agreement dated September 28, 2004 between the parties (the “Franchise Agreement”), and provisions of the Drainage Act, R.S.O. 1990, c. D.17 (the “Act”).

Union Gas Limited (“Union”) asserts that The Corporation of the Township of Norwich (“Norwich”) is required to pay Union 35% of its costs to relocate a gas pipeline necessitated by certain drainage works, in accordance with the Franchise Agreement. Norwich argues that Union should assume the full cost of relocation, as its engineer directed, under s. 26 of the Act.

The application judge held that the cost to relocate gas works when a drain is constructed under the Act is an increase in the cost of “drainage works”, and therefore subject to s. 26 of the Act, which provides for the utility to assume the entirety of the increased cost of drainage works caused by the existence of the public utility’s works. He held that the cost-sharing provisions of the Franchise Agreement did not “trump and hold priority over” s. 26 of the Act. Union appealed the application judge’s decision.

Issues:

(1) Did the application judge err in interpreting s. 26 of the Act to apply to the cost of relocating gas works?

(2) Did the application judge err in concluding that the Act overrides the cost-sharing provisions of the Franchise Agreement?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The application judge erred in its interpretation of Seidel v. Telus Communications Inc., 2011 SCC 15 as standing for a general principle that “no mere contract inter partes can take away that which the law has conferred”. The court stated that there is no such general principle, and the application judge was not correct in his interpretation of what was said, or quoted from, in Seidel. Accordingly, the application judge, informed by this error, did not consider whether the Franchise Agreement cost-sharing provisions applied to the parties’ dispute.

The court explained that the correct approach to analyzing the interplay between the Franchise Agreement and the Act was as follows:

to consider whether the Act wouldprohibit contracting out of s. 26, and whether it would be contrary to public policy to recognize an agreement that does so; and

to interpret the Franchise Agreement itself, to determine whether there is anything in the contract that would take the parties out of the cost-sharing mechanism to which they have agreed, in the case of drainage works undertaken under the Act.

Regarding the first issue, the question is whether the Act expressly, or by necessary implication, would prohibit a utility and a municipality from arriving at their own agreement respecting the sharing of costs, where the construction of the drainage works requires the relocation of a pipeline. The court held that there is nothing in the legislative scheme that would preclude such a cost-sharing agreement in circumstances where the utility is required by the municipality to alter its pipeline to accommodate drainage works. Enforcement of the parties’ contractual cost-sharing agreement would not undermine the detailed procedures set out in the Act for the proposal, planning and approval of drainage works, and the sharing of the municipality’s own costs.

(2) Yes. In terms of the second issue of whether the Franchise Agreement applies to the current dispute, the court held that there is nothing in the Franchise Agreement that would exclude drainage works from “municipal works”, or that would remove from its cost-sharing provisions the drainage works undertaken by Norwich in this case. The Franchise Agreement describes the cost-sharing mechanism in clear language and it unambiguously applies when a municipality requests relocation of a gas system to accommodate any municipal works. Accordingly, the Franchise Agreement would override Norwich’s by-law approving the engineer’s report to the extent it purported to assess Union for the entire cost of relocating its pipeline.

Prior to being deported to Jamaica, the appellant, Mr. Brown, was detained for the purpose of removal in a maximum security institution for five years. He brought a habeas corpus application and sought damages under s. 24(1) of the Canadian Charter of Rights and Freedoms as a remedy for the breach of his ss. 7, 9 and 12 Charter rights. Because he was deported before the application was decided, the habeas corpus portion of the application was dismissed as moot. He nonetheless proceeded with the Charter damages aspect of the application, maintaining that prior to being deported, the detention he suffered was cruel, unusual, arbitrary and indefinite. His application for Charter damages was dismissed. He appeals that dismissal, arguing that the application judge erred.

Issues:

(1) Did the application judge err in finding that there was no breach of ss. 7 and 9 of the Charter?

(2) Did the application judge err in finding that there was no breach of s. 12 of the Charter?

Holding: Appeal dismissed

Reasoning:

(1) No. After considering all of the evidence, the application judge concluded that the detention had not become unlawful. The Immigration Division had made the fact-driven determination that Mr. Brown constituted a flight risk as well as a danger to the public. These determinations are entitled to deference. Pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27, there is a statutory process for continuous and regular reviews by the Immigration Division every 30 days in a quasi-judicial process recognized by the courts as being procedurally fair. There are also provisions for oversight by the Federal Court. Additionally, multiple factors warranted Mr. Brown’s detention. As a result, the deprivation of liberty was in compliance with the principles of fundamental justice and justified in the circumstances. Section 9 of the Charter had also been respected because the legislative criterion for detention had been met. Mr. Brown’s detention was for the valid purpose of removal. He could not be removed earlier because Jamaica had to issue a travel document.

(2) No. The application judge’s determination that the Immigration Division process for review of Mr. Brown’s detention was fair and lawful ought not to be disturbed. Nor should his findings that there had been no lack of diligence on the part of the CBSA in effecting Mr. Brown’s removal and that the delays, although lengthy, were largely beyond their control. The application judge also considered and rejected Mr. Brown’s submission that he did not receive adequate treatment of his mental health issues while in detention. These findings were well supported by the record.

The respondents entered into an agreement with the appellants which provided that the respondents would provide “trade credit” insurance on the appellant’s factored accounts. This agreement was made up of an underlying base policy and a “Schedule” which sets out terms specific to the policy and which included certain “endorsements”. The base policy contained a clause providing that any dispute arising in connection with the contract shall be referred to and finally resolved by arbitration in London, UK.

One of the endorsements contained in the “Schedule” contained an “Action Against Insurer” provision which set out that any action to enforce the obligations of the Underwriters may validly be served upon the Attorney In Fact in Canada for Lloyd’s Underwriters in Montreal. All of the endorsements state that they prevail over any conflicting wording in the underlying policy.

The appellants made several claims for loss under the policy and ultimately commenced an action against the Insurers in Ontario for losses under the insurance contract. The respondents brought a motion to stay the appellant’s action in accordance with the clause contained in the base policy providing for arbitration. The motion judge refused to stay the action. In his view, both the arbitration clause and the “Action Against Insurer” clause provided for alternative, optional methods of dispute resolution.

Issues:

(1) Did the motion judge conclude that the policy provided for a dual-track dispute resolution process contrary to the objective terms of the agreement by failing to apply the correct principles of contractual interpretation?

(2) Did the motion judge err in not applying the legal test for a stay under the International Commercial Arbitration Act and the UNCITRAL Model Law?

Holding: Appeal allowed.

Reasoning:

(1) Yes. The approach in Ontario is that in cases where the “existence or validity of the arbitration agreement” is not clear it is preferable for the arbitrator to decide the issue: Dalimpex Ltd. v. Janicki, (2003), 64 O.R. (3d) 737 (Ont. C.A.), at paras. 21-22.

Although the motion judge expressed the correct legal principles, it was unnecessary and an error for him to “widen” the meaning to the Action Against Insurer endorsement clause and turn it into an alternative dispute resolution provision in order to give it effect. The plain language of the clause can be given meaningful effect without conflicting with the mandatory language of the arbitration clause, thereby giving effect to all of the terms of the insurance policy.

The word “action” and the word “defendant”, does not necessarily refer to a civil action. They can also be used in reference to arbitration proceedings. Also, Action Against Insurer clause does not specify where or how claims to enforce obligations under the agreements are to be determined. This derogates from the argument that the clause was an alternate dispute resolution provision.

The Action Against Insurer endorsement does not clearly provide for an alternative right of the insured to commence a domestic action against the Insurers. It is arguably a service of suit clause. As a result, it cannot be said that the arbitration provision was clearly inoperative on the facts of this case.

(2) Yes. To the extent that the motion judge held that arbitration must be the sole method of dispute resolution agreed to between the parties in order to attract the operation of the UNCITRAL Model Law, doing so was wrong in law. The Model Law is not restricted in its application to international commercial agreements that provide for arbitration as the sole method of dispute resolution. An agreement by the parties to submit certain, but not all disputes in a contract to arbitration does attract its application.

The Model Law may even apply to an arbitration agreement if the right of arbitration is merely optional. If the parties agree that arbitration is an optional method of dispute resolution, and one of the parties chooses to commence arbitration, there is no reason why art. 8 of the Model Law should not apply to stay any duplicative court actions in Ontario. Since, after electing to commence an arbitration, the parties agreed to respect that choice, at that point it may be said that the parties have agreed to submit the dispute to arbitration.

[Feldman, MacPherson and Huscroft JJ.A.]

Counsel:

G Glickman, for the appellant, Chief of Police Toronto Police Service

No one appearing for the respondent L.D

J Mulcahy, for the respondent, Steven Mignardi

J Stewart and M Birdsell, for the intervener Justice for Children and Youth

M Saksznajder and C Goncalves, for the intervener, Office of the Independent Police Review Director

M Bojanowska, for the intervener, Criminal Lawyers’ Association

D Krick, for the Attorney General (Ontario) (written submissions only, by invitation of the Court)

Constable Steven Mignardi of the Toronto Police Service (“TPS”) was charged under the Police Services Act, R.S.O. 1990, c. P. 15 (“PSA”) with discreditable conduct in relation to the alleged assault of L.D., a young person who had been arrested by the TPS. The matter has been referred to a disciplinary hearing. In the context of this administrative proceeding, the TPS brought an application for an order under s. 119(1)(s) of the Youth Criminal Justice Act, S.C. 2002, c.1 (“YCJA”) allowing access to the police records from the evening in question. Constable Mignardi brought a cross-application under ss. 119(1)(s) and 123 of the YCJA for access to records in the TPS’ possession relating to additional incidents where L.D. was investigated, detained, arrested, convicted, and/or prosecuted. Cohen J., of the Ontario Court of Justice (sitting as a youth justice court judge under the YCJA) released her decision dismissing both the TPS and Mignardi applications. Both the TPS and Constable Mignardi appealed the youth court judge’s decision to the Superior Court of Justice. The TPS cited s. 40(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) as the basis for the appeal. The appeal was heard by Morgan J. of the Superior Court of Justice, who allowed the appeal and ordered that the records sought by Mignardi be produced. Although the appeal judge did not expressly address the records sought by the TPS in its appeal, those records were included in the records sought by Constable Mignardi. The TPS appealed the Superior Court judge’s decision to the Court of Appeal under s. 6(1)(b) of the CJA. During the hearing, the court raised the issue of the jurisdiction of the Superior Court judge to hear an appeal from the decision of the youth court judge.

Issues:

(1) Does s. 40(1) of the CJA support an appeal to the Superior Court of Justice from a decision of a youth court judge made under the YCJA?

(2) Is there another route to appeal or review a decision of a youth court judge to the Superior Court of Justice?

(3) Should the Court of Appeal decide the appeal?

Holding: The Court declined to hear the appeal and set aside the decision of the Superior Court of Justice.

Reasoning:

(1) No. Section 40(1) of the CJA provides “If no provision is made concerning an appeal from an order of the Ontario Court of Justice, an appeal lies to the Superior Court of Justice.” TPS conceded that its appeal of the youth justice court’s decision to the Superior Court grounded in s. 40(1) of the CJA was misconceived in light the decision in R. v. Parker, 2011 ONCA 819. In Parker, the appellant (Parker) applied to the Ontario Court of Justice for the return of marijuana plants that had been seized under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) . The application was dismissed and the appellant appealed to the Superior Court of Justice. The Superior Court judge held that he could hear the appeal under s. 40(1) of the CJA. He dismissed the appeal and Parker appealed again. The Court of Appeal found “While the interplay between federal and provincial jurisdictions in drug cases can be problematic, we are satisfied that the correct characterization of a s. 24 application is that it flows out of Parliament’s criminal law power. Accordingly, provincial rights of appeal have no application.”

The question was, therefore, whether the YCJA, like the CDSA, is a federal law anchored in s. 91(27) of the Constitution Act, 1867. This question has been definitively answered in the affirmative, pursuant to earlier jurisprudence. It follows that provincial legislation such as s. 40(1) of the CJA cannot create an appeal right from an order made under the YCJA.

(2) Yes. The appellant and respondent jointly submitted that there is a route to review a decision of a youth court judge relating to the records provisions of the YCJA. The route is an application for certiorari brought under Part XXVI of the Criminal Code before a judge of the Superior Court of Justice. This submission accords with the decision in Parker and thus it was accepted. Section 784 of the Criminal Code provides a right to appeal a decision granting or refusing certiorari to the Court of Appeal.

(3) No. In Parker, the Court of Appeal, having determined that the proper route to review the Ontario Court of Justice judge’s decision was a certiorari application to a Superior Court judge, went on to hear and determine the appeal from the Superior Court judge’s decision on the merits. That Court found “There is little, if any, disadvantage to a party seeking to review a [CDSA] s. 24 order having to apply for certiorari rather than proceeding by way of appeal. In this province, the reviewing court is the same, the Superior Court of Justice. The grounds of review are also the same and, one advantage to a party is that an appeal lies to this court as of right.” The Court of Appeal acknowledged that, pursuant to Parker, it had the jurisdiction to treat the appeal decision as a decision made on an application for certiorari, and to determine the appeal on the merits. However, Justice MacPherson declined to do so. The Court found that the issues and surrounding circumstances were sufficiently different from those in Parker to justify a more cautious result. In Parker, the Superior Court upheld the decision of the Court of first instance. Here, in contrast the Superior Court quashed the decision. Had the appeal been brought properly as an application for certiorari, Justice Morgan could only have quashed Justice Cohen’s decision and ordered access to the records if he found that she had exceeded her jurisdiction in denying access, or if her reasons had disclosed an error of law on the face of the record. His reasons, however, did not consider either of those bases and the Court of Appeal cannot, therefore, properly review his decision to determine if he erred in law. The court therefore set aside the Superior Court’s decision, with the parties being free to go back to the Superior Court on an application for certiorari.